This afternoon, Senators Christopher Dodd (D-CT) and Richard Lugar (R-IN) and Representatives Richard Boucher (D-VA) and Mike Pence (R-IN) introduced companion bills entitled the “Free Flow of Information Act.” These bills are the latest attempt at a federal reporter’s privilege or “shield law” that would protect journalists from being compelled to testify in federal court proceedings or provide testimony, including that which would identify a confidential source, to any federal entity other than Congress.
The bills provide a qualified reporter’s privilege that requires the government to show that the material sought is essential to a criminal or civil case and that all other sources for the information sought have been exhausted prior to compelling a reporter to testify. There is a near-absolute protection for the identity of a confidential source which can only be overcome in five very narrow circumstances where the government must show an overriding need for information of a certain type. In every case in which the privilege is invoked by a reporter, a reviewing court will have to balance the public interest in the disclosure of the information with the public’s interest in protecting the right of the press to protect sources and information.
This bill is supported by over 50 media organizations and companies and provides a federal counterpart to the 49 states (and the District of Columbia) that have some form of statutory or judicially-created protection for reporters.